01 July 2015

In Colorado, you commence a lawsuit by filing a Complaint and delivering it to the persons who are being sued. Once that is delivered, the defendants have a certain number of days to either file an Answer to the allegations of the Complaint (with or without counterclaims against the person bringing the lawsuit and cross-claims against co-defendants) or to file a Motion to Dismiss or a Motion for a More Definite Statement.

Motions to dismiss can either argue that the court lacks jurisdiction, or argue that even if everything in the Complaint is true that the defense wins (this is called "failure to state a claim upon which relief can be granted"). A Motion for a More Definite Statement argues that the Complaint is too vague to provide a response to in an Answer. In these circumstances, there is no requirement to file an Answer and fully frame the dispute between the parties until after these motions are ruled upon. Many of these motions are filed primarily for purposes of delay and to frame the legal issues in the case for the judge, knowing that they are unlikely to be granted.

It is not uncommon for a court to take a very long time to rule on a Motion to Dismiss for failure to state a claim upon which relief can be granted (a.k.a. a 12(b)(5) motion), or a Motion for a More Definite Statement. Within the last couple of years, I have had cases where rulings on each of these types of motions has taken more than six months. Thus, the case doesn't even really begin for many months.

In federal court, the duty to file an Answer is delayed by the filing of a Motion to Dismiss, but not the discovery process unless a "String Cheese Motion" is granted, which is usually done only in cases where there are jurisdiction disputes, although the formal legal standard is not categorical and involves a balancing test.

Rule changes proposed by the Colorado Supreme Court earlier this year would have required defendants to file Answers even when a motion to dismiss for failure to state a claim upon which relief can be granted, or a motion for a more definite statement is pending. The postponement of the requirement to file an Answer would have continued to exist in cases where jurisdiction is at issue. This reform had been implemented in a pilot project in Colorado courts with great success and little complaint. A review of the written comments filed regarding this proposal does provides some insight, however.

But, for some reason not publicly explained, the final version of the rule, which takes effect for cases filed on and after today in Colorado, didn't not incorporate this critical delay reducing reform. This was certainly the prerogative of the court to do. An ability to make changes between the proposed and final version of a rule change is why public comment is allowed in the first place. But, it is still hard to understand why this sensible signature reform of the new rules was not adopted.

Opposition from the CBA Litigation section, and a handful of its members along the same lines, may have been a factor. It said:

Rule 12. Requiring answers and allowing cases to proceed, despite the
pendency of certain motions to dismiss, may increase the amount of attorney fees recoverable against plaintiffs, such as under section 13-17-
201, CR.S. 2014, upon dismissal.

Another opponent was CIRSA, which is an insurance-like defense pool that represents municipalities that have been sued. It stated (emphasis added):

CIRSA is concerned because these proposed amendments to Rule 12(a) will require the municipality and its employees to file an answer and engage in time consuming discovery even though they have filed a motion to dismiss for failure to state a claim under Rule 12(b)(5). This will cause CIRSA and its members (many of whom have significant deductibles) to incur substantial litigation expense while awaiting a ruling on the Rule 12(b)(5) motion. CIRSA's experience is that rulings on pending Rule 12(b) motions can take a considerable amount of time, often many months. Requiring the municipalities and their employees to incur the expense of litigating these case 'while awaiting a ruling on the Rule 12(b)(5) motion will cause unnecessary waste of time and money.

In addition, certain immunities are often raised under Rule 12(b)(5). The decision on whether the municipality or its employee is entitled to immunity from suit is critically important, and the purpose of filing the motion to dismiss is to protect public employees and municipalities
from ill-considered and improperly filed lawsuits. Accordingly, CIRSA's proposal is that the Rule should exclude all defendants from filing
an answer and engaging in discovery when the defendants file a motion not only under Rule 12(b)(1) -(4), but also under 12(b)(5).

Full disclosure: CIRSA was one of my major clients for several years early in my career.

Colorado attorney general opposed the rule change for similar reasons:

The proposed changes to Rules 12 and 16 would require parties to file an
answer and place a case "at issue" for purposes of scheduling and discovery, even though a motion to dismiss has been filed under Rule 12(b)(5) for failure to state a claim. The Attorney General's Office has identified significant concerns regarding the effect of these proposed changes on defenses commonly raised in litigation against public officials. Accordingly, the Attorney General's Office has proposed additional revisions to Rules 12 and 16. See attached. The proposal would (1) exempt from the new requirements Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" and (2) add Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" to the list of motions that the trial court should prioritize. The Attorney General's proposal has been presented to and accepted by the Rules Committee.

Although public entities commonly file motions to dismiss under Rule 12(b)(1) asserting immunity under the Colorado Governmental Immunity Act (CGIA), many of the other immunities frequently asserted by public entities and officials are raised under Rule 12(b)(5). Most significantly, state actors (officials and employees not only of the State but also of counties, municipalities, school districts, and other public entities) often assert the defense of qualified immunity in response to claims asserting that a state actor violated a federal right. Such claims are routinely filed in state court. See, e.g., Churchill v. Univ. of Colo., 285 P.3d 986, 999 (Colo. 2012). Because a state actor's entitlement to qualified immunity is assessed based on the face of the complaint and does not implicate the court's subject matter jurisdiction, such motions are filed under Rule 12(b)(5). See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009) (noting that the case originated with a motion to dismiss asserting failure to state a claim); Sebastian v. Weaver, 2013 Colo. App. LEXIS 1450, at *2 (Colo. App. 2013), cert. granted, 2014 Colo. LEXIS 673 (Colo. 2014).

The United States Supreme Court routinely has held that state actors are presumed to be immune from liability as long as their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether a defendant is entitled to qualified immunity should be resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232 (2009). This is because qualified immunity is both a defense to liability and an "entitlement not to stand trial or face the other burdens oflitigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Denial of qualified immunity to a state official is subject to interlocutory appeal when the qualified immunity determination is made as a matter oflaw-as is routinely the case. City of Lakewood v. Brace, 919 P.2d 231,241 (Colo. 1996).

Motions to dismiss asserting other forms of immunity such as the absolute immunity of judicial officers and prosecutors similarly are brought under Rule 12(b)(5). See, e.g., Imbler v. Pachtman, 424 U.S. 409, 416 (1976). Denial of a motion to dismiss based on absolute immunity also would be subject to an interlocutory appeal. See Chadha v. Charlotte Hungerford Hosp., 865 A.2d 1163, 1170 (Conn. 2005).

Because the various immunity defenses are intended to insulate public employees from the burdens of discovery and trial, as well as from liability, motions to dismiss raising these defenses should be exempt from the proposed requirements to answer the complaint and begin discovery. I appreciate the Committee's willingness to consider the concerns of public entities and urge the Supreme Court to consider the State's proposed revisions when the Court takes up the proposed amendments.

The concern of the municipalities and the state attorney general could have been addressed with a modification of the rule, postponing the requirement to file an Answer when a defense of qualified immunity was raised.

But, the concern raised by the Plaintiffs bar, the the attorneys' fees owed if a motion to dismiss is granted would be greater if the litigation was being prosecuted while the parties awaited a ruling on the motion to dismiss is trickier. The Colorado Supreme Court, in reaction, chose caution for now, even though in the large share of cases, Motion to Dismiss filings are a very important factor in increased litigation cost and delay.

As a matter of policy, I would favor eliminating CRCP 12(b)(5), except in cases involving governmental immunity, entirely, and likewise eliminating the fee shifted statute in Colorado that awards attorneys' fees when a motion to dismiss is granted, or in the alternative, awarding the Plaintiff their attorneys' fees in any case where a CRCP 12(b)(5) motion does not successfully dismiss every single claim asserted by the Plaintiffs in the case, so it would be used much more sparingly.